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6136 FRISCO SQUARE BLVD.

, SUITE 400
FRISCO, TX 75034 | PHONE: (469) 925-0022
FAX: (469) 287-5503 | Email: kf@fancherlegal.com

January 8, 2020

VIA ONLINE SUBMITTAL

Office of the Attorney General


Open Records Division
P.O. Box 12548
Austin, Texas 78711-2548

Re: Request for Decision – OAG Tracking ID No. OR81417419

Dear Open Records Division:

Please accept this letter brief on Request for Open Records Decision – OAG Tracking ID
No. OR81417419, submitted on behalf of the Lone Star Groundwater Conservation District
(“District”) pursuant to Sections 552.301(e)(1)(A) and (D) of the Texas Government Code. This
Request for Open Records Decision is similar to that recently submitted to your office under OAG
Tracking ID No. OR80979419, and therefore the arguments in this Request for Open Records
Decision are in many cases identical to those in pending OAG Tracking ID No. OR80979419.

The District received the open records request enclosed in Exhibit A on December 11, 2019,
as evidenced by the time stamp on the email. Official District holidays, skeleton crew days, and
days off during the period related to this request include the 2019 dates of Monday, December
23rd, Tuesday, December 24th, Wednesday, December 25th, and Tuesday, December 31st, in
addition to Wednesday, January 1, 2020. The District asserts the following exceptions apply to
the requested records:

1. Section 552.103 – Litigation Exception

The District asserts that the records requested fall under Texas Government Code § 552.103(a),
Information is excepted from disclosure if: (1) litigation involving the governmental body is
pending or reasonably anticipated; and (2) the information relates to that litigation.1 Enclosed in
Exhibit B is a pleading in a lawsuit to which the District is a party. This lawsuit was pending at
the time of the request and is still pending as of the date of this letter. The pending litigation in
Exhibit B specifically relates to this request because the individuals named in the request, “Webb
Melder” and “Bob Harden,” were the District Board President and District consultant, respectively.
The lawsuit in Exhibit B involves the District’s appeal of its Management Plan decision to the
Texas Water Development Board, which involves a number of groundwater-related topics

1
Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.—Austin 1997, orig.
proceeding); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.—Houston [1st Dist.] 1984, writ
ref’d n.r.e.).
Request for Decision – OAG Tracking ID No. OR81417419
Page 2 of 5

involving the District. The topics involved in the Exhibit B lawsuit include Desired Future
Conditions, groundwater pumping, and groundwater management, all of which are concepts
contained the documents subject to the request.

In addition, enclosed in Exhibit C is a lawsuit to which the District is not currently a named
party, but which expressly asserts collusion and other actions of the District throughout much of
the lawsuit. This lawsuit was pending at the time of the request and is still pending as of the date
of this letter. Based on the allegations against the District in the lawsuit, the District reasonably
anticipates litigation related to these claims. The specific allegations against the District have been
highlighted in the lawsuit in Exhibit C for your convenient reference. Please note that the District
believes that these arguments related to the Exhibit C lawsuit in this letter are
confidential/privileged information, including the District asserting that the Exhibit C lawsuit
applies to the request at all, and as such will be redacted in full from the information sent to
requestor.

Enclosed in Exhibit D is a representative sample of the information that is implicated by the


request. The documents in Exhibit D are covered by Sections 552.103, 552.106, and 552.111.
With regard to Section 552.103, the first document in Exhibit D is highlighted to show the
references to the same subjects as those directly involved in both lawsuits, including “GMA 14,
“Management Plan,” “litigation,” and “rules,” among other concepts directly implicated by the
lawsuits. The document is an email from the District’s consultant (Bob Harden) to two District
Board members, and has not been provided to the public. The second document in Exhibit D is
also covered by Sections 552.103, 552.106, and 552.111, and refers to “SJRA,” “GRP,”
“production,” “groundwater,” “fees” and other topics that are directly involved in both litigation
matters. The second document in Exhibit D is an email prepared by Bob Harden
(District consultant), and sent to District staff and its attorney. Both emails under Exhibit D
are exactly those records that the litigation exception is designed to protect from disclosure
because they are between District consultants and Board members and directly relate to the
specific topics in both pending lawsuits. Again, this information has not been provided to the
public.

Enclosed in Exhibit E is a representative sample of information that is implicated by the


named
request.in This
the lawsuit in in Exhibit
communication C. It is believed
is between a Districtthat this document
consultant is implicated
(Bob Harden) by the
and the request
third party
because it was forwarded to or in some way includes in the chain the District Board President
(Webb Melder). The District has a joint defense/common interest/privity of interest privilege with
Simon Stoecker, who is the President of the Plaintiff in the lawsuit in Exhibit C. The claims against
San Jacinto River Authority/SJRA in the lawsuit also state that the District was a co-conspirator
of San Jacinto River Authority/SJRA. As such, the District reasonably anticipates that it will be
implead by SJRA into the suit, and that there could likely be counter claims against the Plaintiffs
and the District that give rise to a joint defense privilege or common interest between the parties
in the email at issue in Exhibit E. The District undoubtedly has a common interest with the
Plaintiffs in the lawsuit in Exhibit C because a reasonable person could conclude that the District
is subject to counter claims in the pending litigation that would be the same or similar to those
counter claims against Plaintiffs in the suit. For example, the District settled with Plaintiffs in
separate litigation related to the District’s rules, a subject of the pending litigation in Exhibit C.
Request for Decision – OAG Tracking ID No. OR81417419
Page 3 of 5

In summary, all documents included in the representative sample are related to both pending
litigation matters in Exhibits B and C. In the Exhibit B litigation, the District is the Plaintiff and
in the Exhibit C litigation, the District is specifically named as a co-conspirator of the defendant
in the suit, among other allegations against the District. The purpose of the litigation exception
in Section 552.103 is to allow the District to protect its position in these matters. The
following guidance in the Public Information Act Handbook 2018 clearly applies to this
request for information:

“Section 552.103(a) was intended to prevent the use of the Public Information Act
as a method of avoiding the rules of discovery used in litigation. This exception
enables a governmental body to protect its position in litigation ‘by forcing parties
seeking information relating to that litigation to obtain it through discovery’
procedures.”2

The information requested has not been provided to the public or any parties to where a common
interest/privity of interest/joint defense does not apply. The records requested clearly relate to
the District’s pending litigation because all items requested are either directly or indirectly the
subject of the pending litigation. Requiring that the District provide this information to the
requestor would undoubtedly compromise the District’s position in the pending litigation matters
involving the District.

The District asserts that the litigation exception is dispositive and covers all responsive
documents requested. In the alternative, the District also asserts the additional exceptions
described below.

2. Section 552.106 – Legislative Documents

The District is currently working on rules that regulate groundwater production/pumping


in Montgomery County. These rules must be enacted after the court invalidated a rule of the
District and the parties to the litigation thereafter reached a settlement. The requestor asks for
documents that are directly involved in the District’s rulemaking, and which are prevented
from being disclosed under Section 552.106 because they include “protected
judgments and recommendations.”3 The documents in Exhibit D are therefore also
covered by the Section 552.106 privilege. The communications are between the District’s
technical consultant and other District representatives. The documents clearly include
judgments and recommendations that relate to the District’s rulemaking that will govern
rule requiringproduction,
groundwater involvement in a SJRA
removal of theorformer
other Groundwater Reduction Plan (“GRP”), and also
how the new rules will impact water costs/fees in Montgomery County.

2
The Office of the Attorney General of Texas, Public Information Act Handbook 2018, Page 76 (citing
Thomas v. Cornyn, 71 S.W.3d 473, 487 (Tex. App.—Austin 2002, no pet.); Attorney General Opinion
JM-1048 at 4 (1989); Open Records Decision No. 551 at 3 (1990).
3
Open Records Decision No. 429 at 5 (1985).
Request for Decision – OAG Tracking ID No. OR81417419
Page 4 of 5

3. Section 552.111 – Agency Memoranda

The documents in Exhibit D are also covered by the Section 552.111 exception to disclosure. In
the first document, judgment/recommendations are being provided among District
representatives on matters concerning pending District rules that the District is currently working
on (deliberative process privilege). The documents in Exhibit D were also prepared in
anticipation of litigation (work product privilege) based on the current litigation described above
in Exhibits B and C. In addition, the email also involves judgment and recommendations on
Exhibits B andinC, and was prepared in anticipation of the litigation as strategy related thereto.
the litigation

Please note that my letter dated December 27, 2019, included Section 552.107/Texas Rule of
Evidence (“TRE”) 503 as a listed exception. Upon further review, the District does not assert the
Section 552.107/TRE 503 exception at this time.

Thank you for your attention to this matter. Please do not hesitate to contact me if you have
any questions.

Regards,

Kristen O. Fancher

Enclosures

cc (via email) Ms. Samantha Reiter, General Manager


Ms. Stacey Reese, General Counsel
Lone Star Groundwater Conservation District

Requestor (redacted and without enclosures)